In his closing Submissions, Dr. Charles Smith responded to allegations made against him by lawyers for the Affected Families Group in connection with the "Sharon" and "Jenna" cases;
Lawyers Peter Wardle and Julie Kirkpatrick reply to Smith's defence of his conduct int these two cases in a cogent document entitled, "Response to Dr. Smith’s Submissions Regarding the Sharon and Jenna Cases."
"The central fallacies in Dr. Smith’s submissions with respect to the Sharon and Jenna cases are that his conduct was reasonable, and had minimal impact on the course of the criminal proceedings," the Affected Families response begins:
Sharon;
"Dr. Smith argues in his submissions that his conduct and opinions in this case were reasonable, primarily on the basis that (i) he had limited experience with dog attacks and penetrating wounds; (ii) the dog attack theory was not seriously raised until 6 months after Sharon’s death; and (iii) he was not the only one to reach this opinion," the response continues;
"For the reasons set out below, it is submitted that these arguments are fallacious.
(i) limited experience
As a matter of simple logic, Dr. Smith’s lack of experience cannot be used to support the reasonableness of his opinion!
The most it could demonstrate is that he may have had an honest belief in his own erroneous opinion at the time it was given.
That is a matter of debate, given Dr. Smith’s own admissions regarding his understanding of his role in the judicial process.
(ii) dog attack theory never seriously raised;
First, Dr. Milroy’s opinion regarding the unreasonableness of Dr. Smith’s opinion was not based on what Dr. Smith should have done with information given to him by the police.
Rather, it was based on the pathology of the wounds on Sharon’s body, such as:
0: the distribution of the injuries;
0: the irregular nature of the puncture wounds coupled with extensive bruising and abrasion;
0: the photograph of markings highly suspicious of a dog’s arch;
the scalp wound, which he described as being “torn or ripped away”;
0: and the fact that the wounds did not look like stab wounds made by a knife or scissors, given their irregular edges.
Whether the dog theory was seriously raised by the police or not, it was Dr. Smith’s job to determine the cause of death, or if he could not do so to consult with someone more experienced who could.
Second, the argument that the dog attack theory was not seriously raised until some six months after Sharon’s death conveniently overlooks Dr. Smith’s own role in that theory not being taken seriously earlier.
Dr. Smith significantly undermined the possibility of a dog attack when he opined at the conclusion of the autopsy that the penetrating injuries were stab wounds.
When concerns were brought to Dr. Smith’s attention by the police two days later about the marks on Sharon’s upper back, he effectively shut down the prospect of the dog attack being taken seriously by unequivocally opining that they were “not domestic or wild animal in any way”.
For Dr. Smith to now suggest that his failure to properly assess the wounds was because the prospect of a dog attack was never seriously raised by the police is, frankly, ridiculous.
In any event, Dr. Smith’s conduct at the preliminary inquiry, by which time the “new” dog attack theory was being raised “seriously” – was anything and everything but reasonable.
As set out in our original submissions, Dr. Smith misled the court and opposing counsel about his qualifications to assess the wounds, his examination of the scalp, and the certainty of his own opinion, all in order to assist the Crown demolish the dog attack theory.
The suggestion by Dr. Smith that his testimony was “in good faith” is equally ridiculous, unless “good faith” was meant in the context of his acknowledged role in assisting the Crown.
Recall that Dr. Smith has clearly admitted that he advocated for the Crown’s position at the preliminary inquiry and knowingly overstated his confidence in his evidence at the preliminary, notwithstanding that he knew by that time that his role was to be neutral and objective.
(iii) others reached a similar opinion
Dr. Smith relies on the fact that Mr. Blenkinsop, Dr. Bechard, Dr. Wood and Dr. Chiasson all either supported or did not express any concerns about Dr. Smith’s opinion that Sharon’s injuries were stab wounds, not dog bites.
However, for the reasons which follow, the involvement of these individuals does not in any way support the notion that Dr. Smith’s opinion was reasonable:
Mr. Blenkinsop was not a pathologist, and since he is deceased we don’t know what he thought of Dr. Smith’s opinion.
Dr. Bechard is not a pathologist, and he did not view the body.
Dr. Wood also did not view the body, which he testified would have been “very important” in analyzing the wounds.
In any event, Dr. Wood now accepts that his opinion was wrong.
Dr. Chiasson did not view the body.
He also testified that he had little experience with dog bites and did not have a high level of comfort in this area.
Further, we adopt the submissions of the Chief Coroner's office; (see para. 234 of the Chief Coroner's Office's Closing Submissions) that the meeting at which Dr. Chiasson participated was in 1999, after the preliminary inquiry, and that he had no involvement in the case before then.
Dr. Smith also attempts to downplay his role in the charging and continuing prosecution of Sharon's mother by referring to the circumstantial evidence suggesting she was guilty of a murder.
Had Dr. Smith acknowledged from the outset (rather than 20 years later) his lack of experience in penetrating wounds and ensured that the autopsy was performed by a forensically trained pathologist, the criminal investigation would have ended at that point, since it would have been clear that there was no homicide.
Jenna;
In the Jenna case, Dr. Smith argues that his opinion as to timing of the injuries was reasonable, and he takes issue with Dr. Pollanen’s view that his faulty diagnosis delayed the prosecution and conviction of the true perpetrator of the crime.17
He also points to the evidence of Brenda’s “clear and unequivocal” admission that she assaulted Jenna on the evening of January 20, 1997.
In particular, Dr. Smith points to his evidence at the preliminary inquiry, which he says provides a time window of between 4 and 32 hours for the injuries.
He also says that he did not testify that the injuries all occurred at once.
Dr. Smith argues that because the liver injury could not be excluded as contributing to Jenna’s death, and because it “could be as much as 48 hours old, sitting adjacent to other abdominal injuries that were likely quite recent”, it was reasonable for him not to “narrow down the window of time the injuries could have been inflicted”.
This reasoning, however, is superficial.
The opinion which needs to be evaluated is that which Dr. Smith gave the police during their initial investigation, and which the police relied upon in charging Ms. Waudby, not what he later testified to at the preliminary inquiry.
As outlined in our initial submissions, that opinion appears to have been that the injuries occurred “prior to 1700 on January 21, 1997” and “within a twenty-four hour period.”
As Drs. Milroy and Pollanen have opined, the analysis in this case is straightforward – the injury to the pancreas and duodenum was fatal and must have occurred within 6 hours of death because there was no evidence of healing.
Indeed, as Dr. Milroy put it:
“the evidence was there from the start to indicate that this child did not survive very long from the infliction of the injuries. … the key in this case was the fatal injury was available. You can look at the fatal injury, which was the rupture of the pancreas and the duodenum, and that could not have occurred longer than six hours. The other thing is that the clinical state of a child who has had the injury inflicted will not be normal. So if the child was described as being normal when it was handed over to the babysitter, that was an instant clue that the child had not been struck in the abdomen at that stage.”
The uncertain timing of the liver injury, its possible contribution to Jenna’s death, and whether it could have occurred at the “start of the process” have no bearing on this analysis.
Dr. Smith’s suggestion to the contrary is illogical and unreasonable.
The suggestion by Dr. Smith that he did not play a central role in Brenda Waudby being charged and prosecuted for murder, because there was circumstantial evidence of her guilt, is equally unreasonable.
Had Dr. Smith told the police that the fatal injuries must have been inflicted within 6 hours of death, they would have had to turn their attention away from Brenda Waudby and to the babysitter:
MR. PETER WARDLE: And if Dr. Smith had said that the injuries had occurred within a few hours of death, that would have led the police in a very different direction, correct?
MR. LARRY CHARMLEY: Absolutely. I mean, we wouldn't have ruled out everybody initially, but generally, the investigation would have pursued that avenue.
MR. PETER WARDLE: So the questions My Friend asked you about reasonable and probable grounds; reasonable and probable grounds, of course, is based on the information known to the police at the time, correct?
MR. LARRY CHARMLEY: Yes.
MR. PETER WARDLE: And at the time, your opinion is that you had reasonable and probable grounds to charge Brenda Waudby based on the pathology information that was coming from Dr. Smith, correct?
MR. LARRY CHARMLEY: It -- it fit in with all of the other information we investigated and found to make it reasonable given that the information of an assault occurring the night before and the information from Dr. Smith that the injuries that caused death could have occurred up to twenty-four (24) hours prior to death.
MR. PETER WARDLE: And had Dr. Smith told you, as we heard recently in this Inquiry from Dr. Milroy, that the child died within a few hours, under six(6) hours, from the infliction of the fatal injury, you would agree with me that the police would not have had reasonable and probable grounds to charge Brenda Waudby, correct?
MR. LARRY CHARMLEY: That's correct. Had I been that definite, we would not have reasonable grounds.
Finally, with respect to the cautioned statement, described by Dr. Smith as a “clear and unequivocal” admission, we simply note that the circumstances surrounding the taking of that statement and the subsequent plea are controversial and disputed by Ms. Waudby, who has not had an opportunity to testify at this inquiry.
This issue was briefly canvassed with Mr. Gilkinson in cross-examination and is referred to in our Closing Submissions at paragraphs 256-359."
Harold Levy...hlevy15@gmail.com;
Showing posts with label wood. Show all posts
Showing posts with label wood. Show all posts
Tuesday, April 22, 2008
Monday, April 21, 2008
The Affected Families Group's Response To Dr. Smith's Closing Submissions On The "Sharon" and "Jenna" Cases: An Enlightening Document;
In his closing Submissions, Dr. Charles Smith responded to allegations made against him by lawyers for the Affected Families Group in connection with the "Sharon" and "Jenna" cases;
The reply to Smith's defence of his conduct in these cases is made by lawyers Peter Wardle and Julie Kirkpatrick in a cogent document entitled, "Response to Dr. Smith’s Submissions Regarding the Sharon and Jenna Cases."
"The central fallacies in Dr. Smith’s submissions with respect to the Sharon and Jenna cases are that his conduct was reasonable, and had minimal impact on the course of the criminal proceedings," the response begins in the context of Sharon's case.
Sharon;
"Dr. Smith argues in his submissions that his conduct and opinions in this case were reasonable, primarily on the basis that (i) he had limited experience with dog attacks and penetrating wounds; (ii) the dog attack theory was not seriously raised until 6 months after Sharon’s death; and (iii) he was not the only one to reach this opinion," the response continues;
"For the reasons set out below, it is submitted that these arguments are fallacious.
(i) limited experience
As a matter of simple logic, Dr. Smith’s lack of experience cannot be used to support the reasonableness of his opinion!
The most it could demonstrate is that he may have had an honest belief in his own erroneous opinion at the time it was given.
That is a matter of debate, given Dr. Smith’s own admissions regarding his understanding of his role in the judicial process.
(ii) dog attack theory never seriously raised;
First, Dr. Milroy’s opinion regarding the unreasonableness of Dr. Smith’s opinion was not based on what Dr. Smith should have done with information given to him by the police.
Rather, it was based on the pathology of the wounds on Sharon’s body, such as:
0: the distribution of the injuries;
0: the irregular nature of the puncture wounds coupled with extensive bruising and abrasion;
0: the photograph of markings highly suspicious of a dog’s arch;
the scalp wound, which he described as being “torn or ripped away”;
0: and the fact that the wounds did not look like stab wounds made by a knife or scissors, given their irregular edges.
Whether the dog theory was seriously raised by the police or not, it was Dr. Smith’s job to determine the cause of death, or if he could not do so to consult with someone more experienced who could.
Second, the argument that the dog attack theory was not seriously raised until some six months after Sharon’s death conveniently overlooks Dr. Smith’s own role in that theory not being taken seriously earlier.
Dr. Smith significantly undermined the possibility of a dog attack when he opined at the conclusion of the autopsy that the penetrating injuries were stab wounds.
When concerns were brought to Dr. Smith’s attention by the police two days later about the marks on Sharon’s upper back, he effectively shut down the prospect of the dog attack being taken seriously by unequivocally opining that they were “not domestic or wild animal in any way”.
For Dr. Smith to now suggest that his failure to properly assess the wounds was because the prospect of a dog attack was never seriously raised by the police is, frankly, ridiculous.
In any event, Dr. Smith’s conduct at the preliminary inquiry, by which time the “new” dog attack theory was being raised “seriously” – was anything and everything but reasonable.
As set out in our original submissions, Dr. Smith misled the court and opposing counsel about his qualifications to assess the wounds, his examination of the scalp, and the certainty of his own opinion, all in order to assist the Crown demolish the dog attack theory.
The suggestion by Dr. Smith that his testimony was “in good faith” is equally ridiculous, unless “good faith” was meant in the context of his acknowledged role in assisting the Crown.
Recall that Dr. Smith has clearly admitted that he advocated for the Crown’s position at the preliminary inquiry and knowingly overstated his confidence in his evidence at the preliminary, notwithstanding that he knew by that time that his role was to be neutral and objective.
(iii) others reached a similar opinion
Dr. Smith relies on the fact that Mr. Blenkinsop, Dr. Bechard, Dr. Wood and Dr. Chiasson all either supported or did not express any concerns about Dr. Smith’s opinion that Sharon’s injuries were stab wounds, not dog bites.
However, for the reasons which follow, the involvement of these individuals does not in any way support the notion that Dr. Smith’s opinion was reasonable:
Mr. Blenkinsop was not a pathologist, and since he is deceased we don’t know what he thought of Dr. Smith’s opinion.
Dr. Bechard is not a pathologist, and he did not view the body.
Dr. Wood also did not view the body, which he testified would have been “very important” in analyzing the wounds.
In any event, Dr. Wood now accepts that his opinion was wrong.
Dr. Chiasson did not view the body.
He also testified that he had little experience with dog bites and did not have a high level of comfort in this area.
Further, we adopt the submissions of the Chief Coroner's office; (see para. 234 of the Chief Coroner's Office's Closing Submissions) that the meeting at which Dr. Chiasson participated was in 1999, after the preliminary inquiry, and that he had no involvement in the case before then.
Dr. Smith also attempts to downplay his role in the charging and continuing prosecution of Louise Reynolds by referring to the circumstantial evidence suggesting she was guilty of a murder.
Had Dr. Smith acknowledged from the outset (rather than 20 years later) his lack of experience in penetrating wounds and ensured that the autopsy was performed by a forensically trained pathologist, the criminal investigation would have ended at that point, since it would have been clear that there was no homicide.
Jenna;
In the Jenna case, Dr. Smith argues that his opinion as to timing of the injuries was reasonable, and he takes issue with Dr. Pollanen’s view that his faulty diagnosis delayed the prosecution and conviction of the true perpetrator of the crime.17
He also points to the evidence of Brenda’s “clear and unequivocal” admission that she assaulted Jenna on the evening of January 20, 1997.
In particular, Dr. Smith points to his evidence at the preliminary inquiry, which he says provides a time window of between 4 and 32 hours for the injuries.
He also says that he did not testify that the injuries all occurred at once.
Dr. Smith argues that because the liver injury could not be excluded as contributing to Jenna’s death, and because it “could be as much as 48 hours old, sitting adjacent to other abdominal injuries that were likely quite recent”, it was reasonable for him not to “narrow down the window of time the injuries could have been inflicted”.
This reasoning, however, is superficial.
The opinion which needs to be evaluated is that which Dr. Smith gave the police during their initial investigation, and which the police relied upon in charging Ms. Waudby, not what he later testified to at the preliminary inquiry.
As outlined in our initial submissions, that opinion appears to have been that the injuries occurred “prior to 1700 on January 21, 1997” and “within a twenty-four hour period.”
As Drs. Milroy and Pollanen have opined, the analysis in this case is straightforward – the injury to the pancreas and duodenum was fatal and must have occurred within 6 hours of death because there was no evidence of healing.
Indeed, as Dr. Milroy put it:
“the evidence was there from the start to indicate that this child did not survive very long from the infliction of the injuries. … the key in this case was the fatal injury was available. You can look at the fatal injury, which was the rupture of the pancreas and the duodenum, and that could not have occurred longer than six hours. The other thing is that the clinical state of a child who has had the injury inflicted will not be normal. So if the child was described as being normal when it was handed over to the babysitter, that was an instant clue that the child had not been struck in the abdomen at that stage.”
The uncertain timing of the liver injury, its possible contribution to Jenna’s death, and whether it could have occurred at the “start of the process” have no bearing on this analysis.
Dr. Smith’s suggestion to the contrary is illogical and unreasonable.
The suggestion by Dr. Smith that he did not play a central role in Brenda Waudby being charged and prosecuted for murder, because there was circumstantial evidence of her guilt, is equally unreasonable.
Had Dr. Smith told the police that the fatal injuries must have been inflicted within 6 hours of death, they would have had to turn their attention away from Brenda Waudby and to the babysitter:
MR. PETER WARDLE: And if Dr. Smith had said that the injuries had occurred within a few hours of death, that would have led the police in a very different direction, correct?
MR. LARRY CHARMLEY: Absolutely. I mean, we wouldn't have ruled out everybody initially, but generally, the investigation would have pursued that avenue.
MR. PETER WARDLE: So the questions My Friend asked you about reasonable and probable grounds; reasonable and probable grounds, of course, is based on the information known to the police at the time, correct?
MR. LARRY CHARMLEY: Yes.
MR. PETER WARDLE: And at the time, your opinion is that you had reasonable and probable grounds to charge Brenda Waudby based on the pathology information that was coming from Dr. Smith, correct?
MR. LARRY CHARMLEY: It -- it fit in with all of the other information we investigated and found to make it reasonable given that the information of an assault occurring the night before and the information from Dr. Smith that the injuries that caused death could have occurred up to twenty-four (24) hours prior to death.
MR. PETER WARDLE: And had Dr. Smith told you, as we heard recently in this Inquiry from Dr. Milroy, that the child died within a few hours, under six(6) hours, from the infliction of the fatal injury, you would agree with me that the police would not have had reasonable and probable grounds to charge Brenda Waudby, correct?
MR. LARRY CHARMLEY: That's correct. Had I been that definite, we would not have reasonable grounds.
Finally, with respect to the cautioned statement, described by Dr. Smith as a “clear and unequivocal” admission, we simply note that the circumstances surrounding the taking of that statement and the subsequent plea are controversial and disputed by Ms. Waudby, who has not had an opportunity to testify at this inquiry.
This issue was briefly canvassed with Mr. Gilkinson in cross-examination and is referred to in our Closing Submissions at paragraphs 256-359."
Harold Levy...hlevy15@gmail.com;
The reply to Smith's defence of his conduct in these cases is made by lawyers Peter Wardle and Julie Kirkpatrick in a cogent document entitled, "Response to Dr. Smith’s Submissions Regarding the Sharon and Jenna Cases."
"The central fallacies in Dr. Smith’s submissions with respect to the Sharon and Jenna cases are that his conduct was reasonable, and had minimal impact on the course of the criminal proceedings," the response begins in the context of Sharon's case.
Sharon;
"Dr. Smith argues in his submissions that his conduct and opinions in this case were reasonable, primarily on the basis that (i) he had limited experience with dog attacks and penetrating wounds; (ii) the dog attack theory was not seriously raised until 6 months after Sharon’s death; and (iii) he was not the only one to reach this opinion," the response continues;
"For the reasons set out below, it is submitted that these arguments are fallacious.
(i) limited experience
As a matter of simple logic, Dr. Smith’s lack of experience cannot be used to support the reasonableness of his opinion!
The most it could demonstrate is that he may have had an honest belief in his own erroneous opinion at the time it was given.
That is a matter of debate, given Dr. Smith’s own admissions regarding his understanding of his role in the judicial process.
(ii) dog attack theory never seriously raised;
First, Dr. Milroy’s opinion regarding the unreasonableness of Dr. Smith’s opinion was not based on what Dr. Smith should have done with information given to him by the police.
Rather, it was based on the pathology of the wounds on Sharon’s body, such as:
0: the distribution of the injuries;
0: the irregular nature of the puncture wounds coupled with extensive bruising and abrasion;
0: the photograph of markings highly suspicious of a dog’s arch;
the scalp wound, which he described as being “torn or ripped away”;
0: and the fact that the wounds did not look like stab wounds made by a knife or scissors, given their irregular edges.
Whether the dog theory was seriously raised by the police or not, it was Dr. Smith’s job to determine the cause of death, or if he could not do so to consult with someone more experienced who could.
Second, the argument that the dog attack theory was not seriously raised until some six months after Sharon’s death conveniently overlooks Dr. Smith’s own role in that theory not being taken seriously earlier.
Dr. Smith significantly undermined the possibility of a dog attack when he opined at the conclusion of the autopsy that the penetrating injuries were stab wounds.
When concerns were brought to Dr. Smith’s attention by the police two days later about the marks on Sharon’s upper back, he effectively shut down the prospect of the dog attack being taken seriously by unequivocally opining that they were “not domestic or wild animal in any way”.
For Dr. Smith to now suggest that his failure to properly assess the wounds was because the prospect of a dog attack was never seriously raised by the police is, frankly, ridiculous.
In any event, Dr. Smith’s conduct at the preliminary inquiry, by which time the “new” dog attack theory was being raised “seriously” – was anything and everything but reasonable.
As set out in our original submissions, Dr. Smith misled the court and opposing counsel about his qualifications to assess the wounds, his examination of the scalp, and the certainty of his own opinion, all in order to assist the Crown demolish the dog attack theory.
The suggestion by Dr. Smith that his testimony was “in good faith” is equally ridiculous, unless “good faith” was meant in the context of his acknowledged role in assisting the Crown.
Recall that Dr. Smith has clearly admitted that he advocated for the Crown’s position at the preliminary inquiry and knowingly overstated his confidence in his evidence at the preliminary, notwithstanding that he knew by that time that his role was to be neutral and objective.
(iii) others reached a similar opinion
Dr. Smith relies on the fact that Mr. Blenkinsop, Dr. Bechard, Dr. Wood and Dr. Chiasson all either supported or did not express any concerns about Dr. Smith’s opinion that Sharon’s injuries were stab wounds, not dog bites.
However, for the reasons which follow, the involvement of these individuals does not in any way support the notion that Dr. Smith’s opinion was reasonable:
Mr. Blenkinsop was not a pathologist, and since he is deceased we don’t know what he thought of Dr. Smith’s opinion.
Dr. Bechard is not a pathologist, and he did not view the body.
Dr. Wood also did not view the body, which he testified would have been “very important” in analyzing the wounds.
In any event, Dr. Wood now accepts that his opinion was wrong.
Dr. Chiasson did not view the body.
He also testified that he had little experience with dog bites and did not have a high level of comfort in this area.
Further, we adopt the submissions of the Chief Coroner's office; (see para. 234 of the Chief Coroner's Office's Closing Submissions) that the meeting at which Dr. Chiasson participated was in 1999, after the preliminary inquiry, and that he had no involvement in the case before then.
Dr. Smith also attempts to downplay his role in the charging and continuing prosecution of Louise Reynolds by referring to the circumstantial evidence suggesting she was guilty of a murder.
Had Dr. Smith acknowledged from the outset (rather than 20 years later) his lack of experience in penetrating wounds and ensured that the autopsy was performed by a forensically trained pathologist, the criminal investigation would have ended at that point, since it would have been clear that there was no homicide.
Jenna;
In the Jenna case, Dr. Smith argues that his opinion as to timing of the injuries was reasonable, and he takes issue with Dr. Pollanen’s view that his faulty diagnosis delayed the prosecution and conviction of the true perpetrator of the crime.17
He also points to the evidence of Brenda’s “clear and unequivocal” admission that she assaulted Jenna on the evening of January 20, 1997.
In particular, Dr. Smith points to his evidence at the preliminary inquiry, which he says provides a time window of between 4 and 32 hours for the injuries.
He also says that he did not testify that the injuries all occurred at once.
Dr. Smith argues that because the liver injury could not be excluded as contributing to Jenna’s death, and because it “could be as much as 48 hours old, sitting adjacent to other abdominal injuries that were likely quite recent”, it was reasonable for him not to “narrow down the window of time the injuries could have been inflicted”.
This reasoning, however, is superficial.
The opinion which needs to be evaluated is that which Dr. Smith gave the police during their initial investigation, and which the police relied upon in charging Ms. Waudby, not what he later testified to at the preliminary inquiry.
As outlined in our initial submissions, that opinion appears to have been that the injuries occurred “prior to 1700 on January 21, 1997” and “within a twenty-four hour period.”
As Drs. Milroy and Pollanen have opined, the analysis in this case is straightforward – the injury to the pancreas and duodenum was fatal and must have occurred within 6 hours of death because there was no evidence of healing.
Indeed, as Dr. Milroy put it:
“the evidence was there from the start to indicate that this child did not survive very long from the infliction of the injuries. … the key in this case was the fatal injury was available. You can look at the fatal injury, which was the rupture of the pancreas and the duodenum, and that could not have occurred longer than six hours. The other thing is that the clinical state of a child who has had the injury inflicted will not be normal. So if the child was described as being normal when it was handed over to the babysitter, that was an instant clue that the child had not been struck in the abdomen at that stage.”
The uncertain timing of the liver injury, its possible contribution to Jenna’s death, and whether it could have occurred at the “start of the process” have no bearing on this analysis.
Dr. Smith’s suggestion to the contrary is illogical and unreasonable.
The suggestion by Dr. Smith that he did not play a central role in Brenda Waudby being charged and prosecuted for murder, because there was circumstantial evidence of her guilt, is equally unreasonable.
Had Dr. Smith told the police that the fatal injuries must have been inflicted within 6 hours of death, they would have had to turn their attention away from Brenda Waudby and to the babysitter:
MR. PETER WARDLE: And if Dr. Smith had said that the injuries had occurred within a few hours of death, that would have led the police in a very different direction, correct?
MR. LARRY CHARMLEY: Absolutely. I mean, we wouldn't have ruled out everybody initially, but generally, the investigation would have pursued that avenue.
MR. PETER WARDLE: So the questions My Friend asked you about reasonable and probable grounds; reasonable and probable grounds, of course, is based on the information known to the police at the time, correct?
MR. LARRY CHARMLEY: Yes.
MR. PETER WARDLE: And at the time, your opinion is that you had reasonable and probable grounds to charge Brenda Waudby based on the pathology information that was coming from Dr. Smith, correct?
MR. LARRY CHARMLEY: It -- it fit in with all of the other information we investigated and found to make it reasonable given that the information of an assault occurring the night before and the information from Dr. Smith that the injuries that caused death could have occurred up to twenty-four (24) hours prior to death.
MR. PETER WARDLE: And had Dr. Smith told you, as we heard recently in this Inquiry from Dr. Milroy, that the child died within a few hours, under six(6) hours, from the infliction of the fatal injury, you would agree with me that the police would not have had reasonable and probable grounds to charge Brenda Waudby, correct?
MR. LARRY CHARMLEY: That's correct. Had I been that definite, we would not have reasonable grounds.
Finally, with respect to the cautioned statement, described by Dr. Smith as a “clear and unequivocal” admission, we simply note that the circumstances surrounding the taking of that statement and the subsequent plea are controversial and disputed by Ms. Waudby, who has not had an opportunity to testify at this inquiry.
This issue was briefly canvassed with Mr. Gilkinson in cross-examination and is referred to in our Closing Submissions at paragraphs 256-359."
Harold Levy...hlevy15@gmail.com;
Saturday, April 19, 2008
Part Four: Case Studies; Systemic Factors; The "Sharon" Case; Presented By The Affected Families Group;
"EVEN THOUGH BY DR. SMITH’S OWN ADMISSION TO JANE O’HARA HE RECOGNIZED THAT HE DIDN’T KNOW ANYTHING ABOUT DOG BITES, UNDER CROSS-EXAMINATION AT THE PRELIMINARY INQUIRY HE VIGOROUSLY REFUTED THESE SUGGESTIONS BY DEFENCE COUNSEL, EVEN REMARKING THAT “AS ABSURD AS IT IS TO THINK THAT A POLAR BEAR ATTACKED SHARON, SO IT IS EQUALLY ABSURD THAT IT’S A DOG WOUND.”
DR. SMITH ADMITTED AT THE INQUIRY THAT HE WAS IN REALITY NOT AS CONFIDENT AS HE SOUNDED.
IN HIS EVIDENCE AT THE PRELIMINARY INQUIRY, DR. SMITH EVEN WENT SO FAR AS TO SUGGEST, WRONGLY, THAT HE WAS UNIQUELY QUALIFIED TO RENDER AN OPINION ABOUT THE PENETRATING WOUNDS IN THIS CASE BECAUSE THERE WERE DIFFERENCES IN WOUNDING PATTERNS BETWEEN CHILDREN AND ADULTS.
WHEN QUESTIONED AT THE PRELIMINARY INQUIRY ABOUT THE BASIS FOR HIS OPINION THAT THE SCALP WAS DELIBERATELY CUT OUT BY SCISSORS, HE TESTIFIED THAT MICROSCOPIC EXAMINATION REVEALED THE WOUND EDGE TO BE REMARKABLY SMOOTH, EVEN THOUGH THE SCALP WAS NO LONGER IN A CONDITION TO BE EXAMINED WHEN IT WAS RETURNED TO HIM."
CASE STUDY; SYSTEMIC ISSUES; THE "SHARON" CASE; AFFECTED FAMILIES GROUP;
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Among the most insightful reads that have come out of the Goudge Inquiry are studies of several of the cases studied by the Inquiry - with a view to identifying the systemic issues that they raise.
These case studies have been filed by lawyers Peter Wardle and Julie Kirkpatrick who represent the Affected Families Group;
The fourth case has been identified by the Inquiry as the "Sharon" Case;
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By way of brief background:
Sharon was born in Kingston, Ontario in December of 1989.
She died on June the 12th, 1997 at the age of seven and a half (7 1/2).
On June the 26th of 1997, her mother was charged with second-degree murder in her death.
The preliminary inquiry was conducted the following year.
She was committed to stand trial on the charge and remanded without bail for some period of time when she was ultimately released with the consent of the Crown.
The Crown withdrew the charge on January the 25th, 2001, indicating that it did not have a reasonable prospect of conviction.
--------------------------------------------------------------------------------
"The Sharon case serves as an alarming example of misleading and Crown-biased testimony, confirmation bias, and tunnel vision," the case study begins;
"It also raises issues about forensic training, due diligence in preparing forensic opinions, post-mortem report writing, pathologist scene visits, allocation of cases amongst pathologists, and recording of material communications within the Ontario Chief Coroner's Office and between the Chief Coroner's Office and the police and Crown," it continues;
"Notwithstanding that Dr. Smith had little experience with penetrating wounds,263 he performed Sharon’s autopsy because he was asked to by Dr. Young.
He did not visit the scene.
He did not request that the autopsy be done by a forensic pathologist, nor did he seek the assistance of Dr. Chiasson, whom Dr. Smith knew to be one.
Dr. Smith was told by the police at the time of autopsy of their working theory that Sharon’s death was a homicide and that she was stabbed possibly by scissors.
Rather than shave the scalp to examine the wound edges microscopically (which Dr. Smith acknowledged he should have), he sent the scalp to be examined for head lice, which was indicated as a possible motive for the scalping.
The scalp was no longer in a condition to be examined by the time it returned from the entomologist.
Dr. Smith acknowledged at the Inquiry that he made a number of other basic errors in his post-mortem examination, including inadequate description of wounds and wound tracks, failure to measure the depth of one of the key penetrating wounds, insufficient tissue excisions around the wounds, failure to ensure sufficient photographs were taken, and failure to take swabs.
While at the time of the autopsy Dr. Smith knew of the possible presence of a dog in Sharon’s home when she died, there is little documentation of any communications between the police and the Chief Coroner's Office / Dr. Smith regarding the “alarming” information the police were gathering about the pitbull Hat Trick in the week following Sharon’s death.
Two days after the post-mortem examination, Dr. Smith unequivocally told Cst. Goodfellow in response to concerns raised about some of the wounds that they were “not domestic or wild animal in any way”.
This was then passed on to the investigation team.
It does not appear that Dr. Smith asked any questions during this conversation, and it is unclear whether the police volunteered any information.
The information emerging about Hat Trick should have made its way to Dr. Smith and formed part of his initial opinion.
Today, ten years later, it is still unclear what Dr. Smith knew about the dog and when he knew it.
Although Dr. Smith testified that he believed Mr. Blenkinsop would be consulting with Dr. Wood about the wounds, this is inconsistent with (a) Dr. Wood’s testimony that he was not consulted until many months later, likely as a result of the dog theory having been raised by the defence, and (b) Dr. Smith’s willingness to release Sharon’s body for burial three days after the autopsy even though Dr. Wood had not examined it.
A December 19, 1997 memo from Jennifer Ferguson to Jack McKenna suggests that Dr. Wood was being consulted to “nip [the defence’s dog attack] theory in the bud.”
Dr. Wood acknowledges that this phrasing was “particularly unfortunate”, as it suggests that he was being retained to give a specific opinion from the outset.
Like Dr. Smith’s initial oral opinion, Dr. Wood’s February 22, 1998 opinion regarding the wounds was unequivocal in rejecting the possibility of a dog attack.
278 It left no room for doubt, notwithstanding that it was based only on a review of some (not all) of the photographs, rather than an examination of the body, which Dr. Wood testified would have been “very important” in order to analyze the wounds.
When asked about whether his opinion ought to have been expressed in less certain terms, Dr. Wood’s response was to imply that it was up to the defence to cross-examine him about it at trial.
This answer suggests that Dr. Wood, like Dr. Smith, may indeed have viewed it as his role to nip the defence theory in the bud and support the Crown’s theory.
Equally telling is Dr. Wood’s email in 2000 to a colleague asking, “in extreme confidence”, for any information about Dr. Dorion to assist Dr. Wood in doing a “hatchet job” on him.
The research on dog attacks available at the time (which formed part of Dr. Wood’s own file in the Sharon matter) referred to patterns of wounding in young children similar to those on Sharon’s body, including scalp lacerations and scalp avulsion (separation).
Apparently, neither Dr. Smith nor Dr. Wood took the time to review this literature before they rendered their initial opinions.
Dr. Smith acknowledged that when testifying at the preliminary Inquiry he assumed the role of supporting the Crown’s position and dismissing the dog attack theory, notwithstanding that he knew by that time that he was supposed to be neutral and objective.
He did so by resisting a justified challenge to his relevant forensic experience by defence counsel and by expressing unjustified confidence in his opinion to assist with what he perceived to be the Crown’s strategy for undermining the defence’s dog attack theory.
Even though by Dr. Smith’s own admission to Jane O’Hara he recognized that he didn’t know anything about dog bites, under cross-examination at the preliminary inquiry he vigorously refuted these suggestions by defence counsel, even remarking that “as absurd as it is to think that a polar bear attacked Sharon, so it is equally absurd that it’s a dog wound.”
Dr. Smith admitted at the Inquiry that he was in reality not as confident as he sounded.
In his evidence at the preliminary inquiry, Dr. Smith even went so far as to suggest, wrongly, that he was uniquely qualified to render an opinion about the penetrating wounds in this case because there were differences in wounding patterns between children and adults.
When questioned at the preliminary inquiry about the basis for his opinion that the scalp was deliberately cut out by scissors, he testified that microscopic examination revealed the wound edge to be remarkably smooth, even though the scalp was no longer in a condition to be examined when it was returned to him.
In sum, through misleading and emotive testimony Dr. Smith managed to annihilate the defence’s theory that the wounds were caused by a dog attack.
This is reflected in the Court’s comment to defence counsel: “....lots of luck convincing a jury that this death was caused by a dog attack.... Based on the evidence that I’ve heard.”
After the American Academy of Forensic Sciences AAFS) meeting in February 1999, Dr. Young and Dr. Cairns clearly acted responsibly in raising concerns about the case.
No one at OCCO appears to have recorded the internal case conference between Dr. Cairns, Dr. Dr. Smith, Dr. Wood, Mr. Blenkinsop, and Dr. Queen at which the possibility of a dog attack was raised, and regrettably, dismissed.
The evidence as a whole suggests that the meeting was called by Dr. Cairns after he and Dr. Young returned from the AAFS meeting.
It is still a mystery, however, why so many present (with the exception of Dr. Queen) managed to miss what Drs. Pollanen and Milroy described as a straightforward diagnosis.
Dr. Chiasson was the pathologist who conducted and was in charge of the second post-mortem examination, notwithstanding that he felt his experience with dog-bites was limited and he did not have a high level of comfort.
With hindsight, Dr. Chiasson acknowledged that this may have been the reason he was unable to reach a definitive opinion regarding the nature of many of the wounds.
Dr. Chiasson also acknowledged, with hindsight, that the second autopsy presented a missed opportunity to engage and involve an independent forensic pathologist in the case.
It is not only Dr. Smith (and others at the Chief Coroner's Office) who exhibited tunnel vision in this case.
The Kingston police persisted in their view that Sharon’s mother killed her, despite the results of the second exhumation showing that a dog caused almost all of the wounds.
As indicated by Sgt. Bird in his April 2000 memo, “Make no mistake, the right person, Louise, is on trial. If we want justice to be served and her found guilty, it's an absolute must that we get back on track and work towards this common goal.”2
Also reflective of the police’s state of mind is Sgt. Begbie’s characterization of the mood as “doom and gloom”298 after Mr. Bradley became involved in early 2000, presumably because he began questioning whether the case could survive scrutiny.
Surprisingly, the views of the Kingston police about Sharon’s mother’s guilt persisted even after receiving Dr. Symes’ opinion which definitively dismissed the scalping theory – a key part of the police’s theory on motive.
This is evident from Chief Closs’s letter writing campaign following the withdrawal of the charges against Sharon’s mother, in particular his February 20, 2001 letter to The Kingston Whig-Standard calling for an independent inquiry into Sharon’s death.
The magnitude of the tunnel vision is perhaps best illustrated by Inspector Begbie’s inability at the Inquiry to even express a coherent theory of Sharon’s mother’s involvement following the changed medical evidence:
Basically, whether the – the mother was involved and the dog joined in, or whether the dog came down and foraged later, that’s – we – we weren’t able to tell that.
…
That was – that was the initial – from the onset of the case there was a scalping. The scalp come off somehow. Maybe the – maybe the dog is what's responsible, and that's – some of the defence experts have said with the – the injuries to the head is what's removed the – the scalp but the mother still could have inflicted injuries before."
Harold Levy...hlevy15@gmail.com;
DR. SMITH ADMITTED AT THE INQUIRY THAT HE WAS IN REALITY NOT AS CONFIDENT AS HE SOUNDED.
IN HIS EVIDENCE AT THE PRELIMINARY INQUIRY, DR. SMITH EVEN WENT SO FAR AS TO SUGGEST, WRONGLY, THAT HE WAS UNIQUELY QUALIFIED TO RENDER AN OPINION ABOUT THE PENETRATING WOUNDS IN THIS CASE BECAUSE THERE WERE DIFFERENCES IN WOUNDING PATTERNS BETWEEN CHILDREN AND ADULTS.
WHEN QUESTIONED AT THE PRELIMINARY INQUIRY ABOUT THE BASIS FOR HIS OPINION THAT THE SCALP WAS DELIBERATELY CUT OUT BY SCISSORS, HE TESTIFIED THAT MICROSCOPIC EXAMINATION REVEALED THE WOUND EDGE TO BE REMARKABLY SMOOTH, EVEN THOUGH THE SCALP WAS NO LONGER IN A CONDITION TO BE EXAMINED WHEN IT WAS RETURNED TO HIM."
CASE STUDY; SYSTEMIC ISSUES; THE "SHARON" CASE; AFFECTED FAMILIES GROUP;
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Among the most insightful reads that have come out of the Goudge Inquiry are studies of several of the cases studied by the Inquiry - with a view to identifying the systemic issues that they raise.
These case studies have been filed by lawyers Peter Wardle and Julie Kirkpatrick who represent the Affected Families Group;
The fourth case has been identified by the Inquiry as the "Sharon" Case;
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By way of brief background:
Sharon was born in Kingston, Ontario in December of 1989.
She died on June the 12th, 1997 at the age of seven and a half (7 1/2).
On June the 26th of 1997, her mother was charged with second-degree murder in her death.
The preliminary inquiry was conducted the following year.
She was committed to stand trial on the charge and remanded without bail for some period of time when she was ultimately released with the consent of the Crown.
The Crown withdrew the charge on January the 25th, 2001, indicating that it did not have a reasonable prospect of conviction.
--------------------------------------------------------------------------------
"The Sharon case serves as an alarming example of misleading and Crown-biased testimony, confirmation bias, and tunnel vision," the case study begins;
"It also raises issues about forensic training, due diligence in preparing forensic opinions, post-mortem report writing, pathologist scene visits, allocation of cases amongst pathologists, and recording of material communications within the Ontario Chief Coroner's Office and between the Chief Coroner's Office and the police and Crown," it continues;
"Notwithstanding that Dr. Smith had little experience with penetrating wounds,263 he performed Sharon’s autopsy because he was asked to by Dr. Young.
He did not visit the scene.
He did not request that the autopsy be done by a forensic pathologist, nor did he seek the assistance of Dr. Chiasson, whom Dr. Smith knew to be one.
Dr. Smith was told by the police at the time of autopsy of their working theory that Sharon’s death was a homicide and that she was stabbed possibly by scissors.
Rather than shave the scalp to examine the wound edges microscopically (which Dr. Smith acknowledged he should have), he sent the scalp to be examined for head lice, which was indicated as a possible motive for the scalping.
The scalp was no longer in a condition to be examined by the time it returned from the entomologist.
Dr. Smith acknowledged at the Inquiry that he made a number of other basic errors in his post-mortem examination, including inadequate description of wounds and wound tracks, failure to measure the depth of one of the key penetrating wounds, insufficient tissue excisions around the wounds, failure to ensure sufficient photographs were taken, and failure to take swabs.
While at the time of the autopsy Dr. Smith knew of the possible presence of a dog in Sharon’s home when she died, there is little documentation of any communications between the police and the Chief Coroner's Office / Dr. Smith regarding the “alarming” information the police were gathering about the pitbull Hat Trick in the week following Sharon’s death.
Two days after the post-mortem examination, Dr. Smith unequivocally told Cst. Goodfellow in response to concerns raised about some of the wounds that they were “not domestic or wild animal in any way”.
This was then passed on to the investigation team.
It does not appear that Dr. Smith asked any questions during this conversation, and it is unclear whether the police volunteered any information.
The information emerging about Hat Trick should have made its way to Dr. Smith and formed part of his initial opinion.
Today, ten years later, it is still unclear what Dr. Smith knew about the dog and when he knew it.
Although Dr. Smith testified that he believed Mr. Blenkinsop would be consulting with Dr. Wood about the wounds, this is inconsistent with (a) Dr. Wood’s testimony that he was not consulted until many months later, likely as a result of the dog theory having been raised by the defence, and (b) Dr. Smith’s willingness to release Sharon’s body for burial three days after the autopsy even though Dr. Wood had not examined it.
A December 19, 1997 memo from Jennifer Ferguson to Jack McKenna suggests that Dr. Wood was being consulted to “nip [the defence’s dog attack] theory in the bud.”
Dr. Wood acknowledges that this phrasing was “particularly unfortunate”, as it suggests that he was being retained to give a specific opinion from the outset.
Like Dr. Smith’s initial oral opinion, Dr. Wood’s February 22, 1998 opinion regarding the wounds was unequivocal in rejecting the possibility of a dog attack.
278 It left no room for doubt, notwithstanding that it was based only on a review of some (not all) of the photographs, rather than an examination of the body, which Dr. Wood testified would have been “very important” in order to analyze the wounds.
When asked about whether his opinion ought to have been expressed in less certain terms, Dr. Wood’s response was to imply that it was up to the defence to cross-examine him about it at trial.
This answer suggests that Dr. Wood, like Dr. Smith, may indeed have viewed it as his role to nip the defence theory in the bud and support the Crown’s theory.
Equally telling is Dr. Wood’s email in 2000 to a colleague asking, “in extreme confidence”, for any information about Dr. Dorion to assist Dr. Wood in doing a “hatchet job” on him.
The research on dog attacks available at the time (which formed part of Dr. Wood’s own file in the Sharon matter) referred to patterns of wounding in young children similar to those on Sharon’s body, including scalp lacerations and scalp avulsion (separation).
Apparently, neither Dr. Smith nor Dr. Wood took the time to review this literature before they rendered their initial opinions.
Dr. Smith acknowledged that when testifying at the preliminary Inquiry he assumed the role of supporting the Crown’s position and dismissing the dog attack theory, notwithstanding that he knew by that time that he was supposed to be neutral and objective.
He did so by resisting a justified challenge to his relevant forensic experience by defence counsel and by expressing unjustified confidence in his opinion to assist with what he perceived to be the Crown’s strategy for undermining the defence’s dog attack theory.
Even though by Dr. Smith’s own admission to Jane O’Hara he recognized that he didn’t know anything about dog bites, under cross-examination at the preliminary inquiry he vigorously refuted these suggestions by defence counsel, even remarking that “as absurd as it is to think that a polar bear attacked Sharon, so it is equally absurd that it’s a dog wound.”
Dr. Smith admitted at the Inquiry that he was in reality not as confident as he sounded.
In his evidence at the preliminary inquiry, Dr. Smith even went so far as to suggest, wrongly, that he was uniquely qualified to render an opinion about the penetrating wounds in this case because there were differences in wounding patterns between children and adults.
When questioned at the preliminary inquiry about the basis for his opinion that the scalp was deliberately cut out by scissors, he testified that microscopic examination revealed the wound edge to be remarkably smooth, even though the scalp was no longer in a condition to be examined when it was returned to him.
In sum, through misleading and emotive testimony Dr. Smith managed to annihilate the defence’s theory that the wounds were caused by a dog attack.
This is reflected in the Court’s comment to defence counsel: “....lots of luck convincing a jury that this death was caused by a dog attack.... Based on the evidence that I’ve heard.”
After the American Academy of Forensic Sciences AAFS) meeting in February 1999, Dr. Young and Dr. Cairns clearly acted responsibly in raising concerns about the case.
No one at OCCO appears to have recorded the internal case conference between Dr. Cairns, Dr. Dr. Smith, Dr. Wood, Mr. Blenkinsop, and Dr. Queen at which the possibility of a dog attack was raised, and regrettably, dismissed.
The evidence as a whole suggests that the meeting was called by Dr. Cairns after he and Dr. Young returned from the AAFS meeting.
It is still a mystery, however, why so many present (with the exception of Dr. Queen) managed to miss what Drs. Pollanen and Milroy described as a straightforward diagnosis.
Dr. Chiasson was the pathologist who conducted and was in charge of the second post-mortem examination, notwithstanding that he felt his experience with dog-bites was limited and he did not have a high level of comfort.
With hindsight, Dr. Chiasson acknowledged that this may have been the reason he was unable to reach a definitive opinion regarding the nature of many of the wounds.
Dr. Chiasson also acknowledged, with hindsight, that the second autopsy presented a missed opportunity to engage and involve an independent forensic pathologist in the case.
It is not only Dr. Smith (and others at the Chief Coroner's Office) who exhibited tunnel vision in this case.
The Kingston police persisted in their view that Sharon’s mother killed her, despite the results of the second exhumation showing that a dog caused almost all of the wounds.
As indicated by Sgt. Bird in his April 2000 memo, “Make no mistake, the right person, Louise, is on trial. If we want justice to be served and her found guilty, it's an absolute must that we get back on track and work towards this common goal.”2
Also reflective of the police’s state of mind is Sgt. Begbie’s characterization of the mood as “doom and gloom”298 after Mr. Bradley became involved in early 2000, presumably because he began questioning whether the case could survive scrutiny.
Surprisingly, the views of the Kingston police about Sharon’s mother’s guilt persisted even after receiving Dr. Symes’ opinion which definitively dismissed the scalping theory – a key part of the police’s theory on motive.
This is evident from Chief Closs’s letter writing campaign following the withdrawal of the charges against Sharon’s mother, in particular his February 20, 2001 letter to The Kingston Whig-Standard calling for an independent inquiry into Sharon’s death.
The magnitude of the tunnel vision is perhaps best illustrated by Inspector Begbie’s inability at the Inquiry to even express a coherent theory of Sharon’s mother’s involvement following the changed medical evidence:
Basically, whether the – the mother was involved and the dog joined in, or whether the dog came down and foraged later, that’s – we – we weren’t able to tell that.
…
That was – that was the initial – from the onset of the case there was a scalping. The scalp come off somehow. Maybe the – maybe the dog is what's responsible, and that's – some of the defence experts have said with the – the injuries to the head is what's removed the – the scalp but the mother still could have inflicted injuries before."
Harold Levy...hlevy15@gmail.com;
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